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January 22, 2013 marks the 40th anniversary of the Roe v. Wade decision that recognized a constitutional right to abortion. This month, in honor of the anniversary, we are launching a year-long “state of the movement” podcast series that will feature the voices of leaders of the reproductive health, rights, and justice movement, and related progressive movements to discuss what it means both to fully realize the promise of Roe and to move beyond the accomplishment of Roe to enfranchise all women in their freedom to exercise their full range of reproductive rights. In our 2006 report, “More than a Choice: A Progressive Vision for Reproductive Health and Rights,” we envisioned reproductive freedom as encompassing four basic cornerstones: 1) The ability to become a parent and to parent with dignity; 2) The ability to determine whether and when to have children; 3) The ability to have a healthy pregnancy; and 4) The ability to have healthy and safe families and relationships. We hope you’ll join us for our monthly podcasts as we ask movement leaders about their work toward realizing the goal of reproductive freedom for everyone and what struggles we face 40 years after the Supreme Court recognized women’s right to choose abortion.
Jessica Arons: My name is Jessica Arons. I am the director of the Women’s Health and Rights Program here at the Center for American Progress. And I am thrilled to be joined by Nancy Northup, who is the president of the Center for Reproductive Rights, a global human rights organization that uses constitutional and international law to secure women’s reproductive freedom. The center has brought groundbreaking cases before national courts, U.N. committees, and regional human rights bodies, and has built the legal capacity of women’s rights advocates in over 45 countries.
So, I wanted to take the opportunity to have Nancy here with us today to discuss some of the reproductive rights litigation going on throughout the country right now and also the way that doctrine has changed over time and has eroded some of women’s longstanding protections in this country for reproductive rights.
I’m not sure whether it was you or someone else who said that “We’re no longer defending Roe—we’re now defending Casey.” So what does that mean? Can you unpack that for us a little? And can you talk about what that looks like in terms of your current docket?
Nancy Northup: Sure, so 40 years ago the Supreme Court decided Roe v. Wade and it was a very strong decision on women’s access to abortion services. Because, in rendering that decision, what the Supreme Court said is that restrictions on access to abortion services—many of the bans that were in place 40 years ago—were going to be subject to the toughest constitutional review by the Court, and that is something that’s called “strict scrutiny.” And that means that for the government to justify a restriction, it has to be something that is narrowly tailored to a compelling state interest. In other words, that the government’s interest has to be critically important and that it has to be the most limited way that they are trying to advance that interest—that some less burdensome way cannot achieve that. So that was very important and for almost two decades we had litigation under that, and many restrictions on access to abortion were struck down.
In 1992 the Supreme Court decided Planned Parenthood v. Casey and they were specifically looking at a 24-hour waiting period for women between initial consultation, with some government-mandated materials. They were looking at a requirement that wives notify their husbands when they are having abortions. And in that case the Supreme Court, while upholding the fundamental right to have an abortion in the early months of pregnancy, cut back on the “strict scrutiny” standard and they replaced it with something called the “undue burden” standard—saying that as long as a restriction doesn’t have the purpose or effect of putting a substantial burden in the way of a woman seeking an abortion, it’ll be upheld. And so in that case, although the Supreme Court struck down the requirement that wives inform their husbands, it did uphold a 24-hour waiting period after mandated government counseling.
And so that opened the door to a whole floodgate of new restrictions. Because those who would like to see the most limited access to abortion said, “Let’s try everything under the sun to see what we can restrict.” So, right now, you see cases around the country—there’s more than, I think, 30 cases active in the courts around the country—and they’re everything from a flat-out ban on abortion before the time that Planned Parenthood v. Casey would allow; forcing women to undergo ultrasounds and have them described to them before they can have an abortion; defunding of Planned Parenthood; restrictions on the use of the abortion pill; restrictions on facilities—requirements that abortion facilities have certain room space and janitorial space—and all kinds of regulations that are unrelated to the health and safety of providing services.
So all of these have been a real explosion and particularly in the last couple of years. We saw 60 new restrictions on access to abortion in 2011. We’re seeing a similar number coming through this year. The last thing I’ll just say about Casey is that another very troubling aspect of that decision was basically that the Court said that the government can try to influence women’s decision-making around an abortion. And that was around that 24-hour waiting period. And the fallout from that is seeing these crazy laws like the forced sonogram laws, which are really attempts to coerce women’s decision-making. And we feel strongly that women should be—as they are with their exercise of their rights to religious freedom or their rights to vote—that the government should not be trying to get in their head and telling them what to do.
JA: Can you talk a little bit about some of the cases that you’re seeing and you’re fighting right now as a result, where the question at issue is whether the regulation is an undue burden or not?
NN: Sure. We are active in a lot of cases across the United States, challenging laws in Louisiana, Texas, Mississippi, Oklahoma, North Carolina, Kansas, Arizona—across the nation. And a lot of times, we’re actually bringing challenges not under Planned Parenthood v. Casey but under other constitutional provisions because we get strict scrutiny under those. So, for example, there has been a lot of attention this year to states passing laws that force women who are going to have an abortion to have a sonogram. They force the doctor to describe the sonogram, even over the woman’s objections. And we have challenged those on First Amendment grounds, so that the court would apply strict scrutiny. We have prevailed in the district courts in a couple of those cases, one of which is still ongoing in North Carolina.
Unfortunately, in the Federal Court of Appeals for the Fifth Circuit, which oversees Texas, the court said, “Hey, you can’t make this First Amendment claim, you have to go back and make this claim in the box of Planned Parenthood v. Casey and we’re going to find it ok under that.” So, you know, that’s an example of the softening of Casey.
But we’re also challenging other restrictions. Several states have basically in effect banned the use of the abortion pill and we’re challenging that. Arizona has put a very early restriction on access to abortion, at 20 weeks, which is before the time that the Supreme Court has said that states can ban abortions as long as there is an exception for women’s life and health, and we’re challenging that.
But quite often in these challenges we’re going to state court because the protections are stronger or we’re looking to other ways to challenge these laws, again because Casey has really watered down the protections that were available under Roe v. Wade.
JA: You know, you just mentioned the health exception. And of course, for decades, the Supreme Court and federal jurisprudence had a requirement that any abortion restrictions include a health exception. And now it’s not as clear, given some of the more recent Supreme Court decisions, whether that’s going to be the case anymore. Have you seen any impact already in laws that you have had to challenge and the court cases that you’re fighting? And do you see any opportunities for gaining back stronger protections on that front?
NN: In the Gonzalez case in the Supreme Court, which was a 2007 decision, the Supreme Court issued a ruling that was troubling with respect to the health exception. As you said, from the time of Roe v. Wade, the Court has always said that any restriction on abortion has to have an exception for women’s life and health. And in the Gonzalez case in the Supreme Court, they seemed to be softening in what they were saying there. But we read that as not a rejection of the health exception generally—we read it as, in that case, a challenge to the federal so-called Partial-Birth Abortion Ban Act. And what the Court said there is that it was unlikely that the ban on a particular method of abortion, which was not a primary method of abortion for second trimester abortions, was unlikely to endanger women’s health in that case. The Court said we could come back in another case with an individual woman and make the health argument again. We would have liked to have seen the Court basically leave it to doctors to decide what the safest abortion procedure is for a particular woman. We think it’s unreasonable to think that a woman who is making a decision about medical care is going to go to court in the middle of it to vindicate her right to have the safest procedure for her.
We don’t think the architecture of that decision was good but we don’t think it was a total undermining. We think it’s really critical that we vigorously defend, and that the courts vigorously defend, the fact that you have got to have an exception for women’s life and health to abortion restrictions. The reality is that pregnancy brings with it complications. Pregnancy brings with it risks to women’s health. And you have to let doctors and their patients be able to address those health circumstances. We are hopeful that the jurisprudence will hold but it was a troubling decision by the Court in the Gonzalez case.
JA: Let’s talk about the effect of abortion litigation on other areas of jurisprudence. You had already mentioned that you sometimes have to bring First Amendment claims and I know that there have been some decisions that raise questions for procedural rights, like facial challenges trying to stop a law before it goes into effect. Can you talk about how you see the litigation going on around abortion-rights cases affecting other areas of the law?
NN: Sure. The concerns that you just brought up are good ones. There has been, and this includes what I was just talking about in the Gonzalez case in the Supreme Court, the Court being very cautious in the area of challenges to restrictions on abortion to allowing facial challenges, which means the ability to ask the court enjoin a statute before it goes into effect on the face of its provisions, which means by reading it, by hearing evidence about what the effect is going to be, to have it enjoined. Instead, the Court wants to send us into this world of as-applied challenges, which means you have to wait for an individual who is facing restrictions to bring a court case. And in the context of abortion rights, that makes no sense. And it makes no sense because a woman who is seeking to terminate a pregnancy is under a time clock. The earlier a pregnancy is terminated, the better for her health. And the notion that while you’re in the middle of trying to get medical care, that you’re going to instead go get a lawyer and go to court, is downright absurd.
So that aspect of making it hard to bring facial challenges has the potential of spreading to other areas of civil rights law. And saying to other challenges to civil rights law, “Well you can’t do this either. Wait until you’re that individual immigrant who is affected by the situation. Wait until you have this individual who is subject to race discrimination under some broad statute that is clearly going to be harmful to African Americans, for example. You can’t bring a facial challenge to these statutes.”
The second area that is quite, I think, troubling for civil rights law is the aspect that the courts in access to abortion cases are sometimes willing to accept junk science to justify the state’s reason for putting restrictions on access to abortion services. So, for example, the Court has upheld, against all sound scientific facts, requiring doctors to tell patients that there is a link between abortion and breast cancer. And it’s been clear, even in the studies that the federal government has done, that there is not a link between abortion and breast cancer. And yet, because there is some junk science out there, the Court has said, “Well, it’s okay for the state to force doctors to say something that they believe is unsupported and that is in fact unsupported.” So, again, those kinds of decisions about what counts as facts is not good in any area of the law and so that’s another problematic area.
JA: As we see the protections of Roe eroding or softening over time, there is a lot of second-guessing and legal feminists often like to debate about the merits of the Equal Protection Clause versus the right to privacy—which is more effective in protecting reproductive rights? And I’m sure you know, but many in the public do not know, that lawyers in Roe v. Wade did argue on both grounds but the Supreme Court rejected the equal protection claims. So I’m just wondering where you fall in this debate and whether you think it is one worth revisiting in the courts? Whether we should be pushing an equal protection argument and seeing if we can revitalize it? Or are there any other promising legal strategies that you see emerging?
NN: So I think that we can and should, and the Center for Reproductive Rights absolutely does push both theories. So, just to make this clear for your audience, there’s obviously two very interrelated concepts when it comes to women’s access to reproductive health care. One is the liberty of her own decision making. This is what we consider to be the right to privacy. And this is the notion that there is a line around the individual, which the government cannot cross. And it was recognized in the contraceptive cases and it was recognized obviously in Roe v. Wade. And it’s based on a long line of constitutional decisions about how you raise your family and who you marry. This notion again that there is individual liberty is really critical to our constitutional protections, and that the government can’t tell you how to make these important decisions about your life. So that’s the liberty aspect. It’s obviously a very important component of access to reproductive decision-making and reproductive services.
But obviously the issue of women’s equality is also really central to reproductive health services. Women and men are differently situated when it comes to pregnancy. Women risk all kinds of health and life issues with respect to pregnancy. And it’s been recognized over and over again, including by the Supreme Court, that it is critical to women being able to be equal members of society to be able to control their reproductive health. So, in Casey, actually the Court came back, and even though they’re still deciding it on the right to privacy, this subtheme I would say of equality is there in Casey because they’re recognizing that women need to be able to control this to be equal members of society.
So, we continue to argue equal protection from the context of sex discrimination. We also argue equal protection in the different realm of: these laws are unfair because they treat the provision of abortion services differently. But I think it’s critical. I mean, in international human rights law, it’s understood. For example, under the Convention on the Elimination of All Forms of Discrimination against Women, which is the international women’s rights treaty, which almost every country in the world is a party to, except the United States, that discrimination against health care that only women need is sex discrimination. And so that means if you are discriminating against contraception, or discriminating against prenatal care, or discriminating against safe abortion services—that is discrimination against women because it is health care that only women need. So I think it’s important that we continue to argue on both these grounds—the critical necessity to individual liberty and the fundamental sexual equality issue that is at stake in reproductive health care.
JA: Great. Well thank you so much for taking the time to speak with us today.
This interview was edited for clarity and length.
Jessica Arons is Director of the Women’s Health and Rights Program at the Center for American Progress.